Erdmann v. United Railways Company of St. Louis

• Decision Date: 06 May 1913
• Court: Missouri Court of Appeals
• Parties: ANNA ERDMANN, Respondent, v. UNITED RAILWAYS COMPANY of St. Louis, Appellant

156 S.W. 764

174 Mo.App. 245

ANNA ERDMANN, Respondent, v. UNITED RAILWAYS COMPANY of St. Louis, Appellant

Court of Appeals of Missouri, St. Louis

May 6, 1913

April 9, 1913, Argued and Submitted

Appeal from St. Louis City Circuit Court.--Hon. W. B. Homer, Judge.

Judgment affirmed.

Boyle & Priest and Paul U. Farley for appellant.

(1) The court erred in giving plaintiff's instruction No. 2, in that said instruction fails to limit the amount of plaintiff's recovery for medical attendance and medicine to the sum pleaded in her petition, to-wit, $ 100. Smoot v. Kansas City, 194 Mo. 513; Heinz v. Railroad, 143 Mo.App. 38; Shinn v. Railroad, 146 Mo.App. 718; Tinkle v. Railroad, 212 Mo. 471; Radke v. Basket & Box Co., 229 Mo. 1; Walters v. Railroad, 165 Mo.App. 628. (2) The court erred in excluding competent material and relevant testimony offered by defendant.

C. J Anderson for respondent.

(1) None of the authorities cited by appellant under point I of its brief are applicable to the case at bar for the reason that in each of those cases the petition expressly limited the full amount of damages sustained by plaintiff by reason of such medicines and medical attendance or loss of time. (2) Instruction number two on the measure of damages as given for plaintiff correctly states the law. Lindsay v. Kansas City, 195 Mo. 166; Tandy v. Transit Co., 178 Mo. 240; O'Donnel v. United Railways Co., 152 Mo.App. 606. (3) No error was committed by the trial court in its ruling on the evidence offered by the defendant and complained of by defendant herein. If such ruling was erroneous then such error was harmless and in no way prejudicial to the defendant. The court sustained the objection to the form of the question only. If counsel had desired to pursue the subject-matter further he could have reframed his question.

REYNOLDS P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

--The petition in this case counts upon injuries alleged to have been sustained by plaintiff in consequence of a collision between two cars operated by defendant, one on its Cherokee line, the other on its Olive street line, in the city of St. Louis. The injuries alleged to have been sustained are bruises, contusions and abrasions upon the nose, arms and lower limbs, the left shoulder badly sprained, back sprained and wrenched, the left ear torn and lacerated, ovaries and kidneys torn, bruised and lacerated and entire nervous system greatly shocked, it being alleged that her injuries are incurable and permanent. It is charged that by reason of her injuries plaintiff has been prevented from following her usual occupation as a saleslady of millinery and ladies' wearing apparel; that she has lost her earnings from that employment, to-wit, $ 15 a week from and after the 4th of June, 1910, and will continue to lose those earnings in the future; that she has paid large sums of money for medicine and medical treatment, in the amount of $ 100, has obligated herself to pay and will be compelled to pay large sums of money for medicines and medical treatment in the future, the amount unknown to plaintiff. Damages were prayed in the sum of $ 7500.

The answer was a general denial. The trial resulted in a verdict and judgment for plaintiff in the sum of $ 3750, from which, after filing a motion for new trial, defendant has duly perfected its appeal to this court.

The only errors assigned before us are two. The first is to the giving of an instruction as to the measure of damages, it being complained that this instruction fails to limit the amount of plaintiff's recovery for medical attendance and medicines to the sum pleaded in her petition, to-wit, $ 100. In support of this assignment we are referred to Smoot v. Kansas City, 194 Mo. 513, 92 S.W. 363; Hienz v. United Railways Co., 143 Mo.App. 38, 122 S.W. 346; Shinn v. United Railways Co., 146 Mo.App. 718, 125 S.W. 782; Tinkle v. St. Louis & S. F. R. Co., 212 Mo. 445, 110 S.W. 1086; Radtke v. St. Louis Basket & Box Co., 229 Mo. 1, 129 S.W. 508, and Walters v. United Railways Co., 165 Mo.App. 628, 147 S.W. 1098. It is true that the instruction complained of did not limit the amount of recovery for medical attendance and medicine to the sum pleaded, to-wit, $ 100, and that these cases seem to hold that this was error. But in the recent case of Shinn v. United Railways Co., not yet officially reported but see 154 S.W. 103, where the same point was made on the instructions and in which the majority of our court held in the same case (146 Mo.App. 718) that the instruction should have limited the recovery for medical attendance to the amount claimed, our Supreme Court has disapproved of that, holding that it was unnecessary, in the instructions, to place a limit upon each specific item of damage alleged to have been sustained. On the authority of that decision this assignment of error must be overruled.

The second and remaining assignment of error is to the exclusion of competent, material and relevant testimony, as it is said offered by defe...